Lukens column: Jehovah’s Witnesses, public property and the First Amendment

Is a complaint about proselytizing in Redmond’s Dry Canyon valid?

Yell “free speech” and “controversy” in a crowded room, and odds are those around you will think of recent events in Charlottesville and Berkeley. That’s only natural. Still, not all of those who make others uncomfortable by exercising their First Amendment rights chant offensive slogans or wear ski masks on their heads. Sometimes, they even wear long skirts and sit quietly in the park.

On Aug. 18, The Bulletin’s newsroom received an email from a man who, while walking in Redmond’s Dry Canyon, was “dismayed to see a structure set up by Jehovah’s Witnesses touting their religion on city property.” He spoke to a Redmond city employee, he wrote, and was told that other residents had called to complain as well. “I think,” he concluded, that The Bulletin “should look into this as an issue of separation of church and state.”

The email was accompanied by a photo of two women sitting on chairs beside a paved path. Next to them is a wheeled rack that presumably contains religious literature.

This is not an uncommon sight. While in Bend’s Shevlin Park a day or two later, I saw two women “cart witnessing,” as this form of proselytizing is known. I’ve also seen Jehovah’s Witnesses spreading the word in this fashion on sidewalks in downtown Bend, in Drake Park and elsewhere.

And it is an activity about which many people are not entirely comfortable. “We’ve had a handful of inquires on this topic over the past couple of weeks,” Bend Park & Recreation District spokeswoman Julie Brown said via email Tuesday.

But is proselytizing on public property in the company of a wheeled literature cart an impermissible violation of church and state? In a word, nope.

“Public parks are the quintessential example of a ‘public forum’ where everyone has a right to exercise First Amendment freedoms, including haranguing a crowd, waving a flag, panhandling, or distributing religious literature.” So explained Portland attorney Charles Hinkle, a First Amendment expert, in an email Tuesday.

The First Amendment, though, doesn’t give people the right to say anything they want, however they want and wherever they want.

First, Hinkle explained in a follow-up call Wednesday, free speech rights limit censorship only by government. While the First Amendment may protect someone’s right to proselytize, protest or whatever in a public park or on a city sidewalk, it doesn’t obligate you to allow such behavior on your property, whether you’re an individual or a business.

Second, governments may impose appropriate time, place and manner restrictions on speech. First Amendment protections notwithstanding, Hinkle said Wednesday, you can’t necessarily “go to a sidewalk outside a hospital at 2 in the morning and sing the Star Spangled Banner” at the top of your lungs. Prohibiting people from disturbing the peace, he said, is one of the classic restrictions on freedom of speech.

What, then, does that mean for those interested in cart witnessing or otherwise expressing themselves locally?

If all you’re planning to do is set up a stand and attend it on Bend park property, as Jehovah’s Witnesses do, then you can go right ahead without asking anyone’s say-so. However, district spokeswoman Brown wrote Tuesday, you may have to make a business-use reservation if your activity requires a larger space or setup. Generally, she said, the district asks everyone to adhere to a district rule under which “No person shall disturb, injure or endanger the comfort, health, peace or safety of others on district property.”

The city of Bend restricts behavior on sidewalks in similar fashion. “Speech is protected on City sidewalks and in public spaces, including content of a religious nature,” Community Relations Manager Joshua Romero wrote in an email Tuesday. However, people may not obstruct sidewalks, and signs may require a city permit depending upon their size, type and location.

And Redmond, where Jehovah’s Witnesses sometimes sit in the Dry Canyon? Proselytizing on public property does not require a permit unless organizers expect to attract 100 people or more, according to the city.

The protections afforded by the First Amendment probably won’t endear our Aug. 18 email author, and perhaps many others, to the Jehovah’s Witnesses they pass in parks and on sidewalks. Then again, nothing requires them to listen to or engage such people. And if they get really fed up and decide to start their own church — the Church of the Misbegotten First Amendment, say — they’ll be comforted to know that the First Amendment will protect their right to spread their message on public property, too.